Williamson v. Commissioner of Social Security

Filing 20

OPINION AND ORDER AFFIRMING the decision of the ALJ, ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 3/26/14. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE A. WILLIAMSON,
Plaintiff,
v.

Case No. 4:13-CV-1 JVB

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

OPINION AND ORDER
Plaintiff Denise Williamson seeks judicial review of the final decision of Defendant
Carolyn W. Colvin,1 Acting Commissioner of Social Security, who denied her application for
Disability Insurance Benefits under the Social Security Act, 42 U.S.C. § 416(i), 423 et seq. For
the following reasons, the Court affirms the Commissioner’s decision.

A. Procedural Background
On June 5, 2010, Plaintiff applied for disability benefits due to a disabling condition that
allegedly began on September 8, 2009. (R. 141.) Plaintiff’s claim was denied initially and upon
reconsideration. (R. 57–59, 65–68.) Plaintiff then requested a hearing before an Administrative
Law Judge (“ALJ”) and appeared with counsel on August 9, 2011. (R. 82.)

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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security. Pursuant to Federal
Rule of Civil Procedure 25(d), Carolyn W. Colvin is automatically substituted for Michael J. Astrue as the named
Defendant.

On September 2, 2011, the ALJ determined Plaintiff was not entitled to Social Security
disability benefits. (R. 8.) The ALJ found as follows:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since September
8, 2009, the alleged onset date.
3. The claimant has the following severe impairments: status post left knee
surgery, osteoporosis, L5–S1 herniation without nerve root impingement, and
bilateral lumbar radiculopathy.
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift up to 10 pounds
occasionally, stand/walk 2 hours each in an 8-hour workday, and sit 6 hours in
an 8-hour workday with normal breaks. She can never climb ladders, ropes,
scaffolds, or stairs, but can occasionally climb ramps, balance, stoop, kneel,
crouch, and crawl. The claimant must avoid concentrated exposure to extreme
cold or heat, wetness and humidity, and hazards such as moving machinery or
unprotected heights.
6. The claimant is capable of performing past relevant work as a collections
clerk. This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity.
7. The claimant has not been under a disability, as defined in the Social Security
Act, from September 8, 2009, through the date of this decision.
(R. 11–19.)
The ALJ’s opinion became final when the Appeals Council denied Plaintiff’s request for
review on November 1, 2012. (R. 1.)

B. Factual Record
(1) Plaintiff’s Background
Plaintiff was forty-six years old when she filed her initial application for disability
benefits. (R. 141.) She graduated from high school and is able to communicate, read, and write in
English. (R. 144, 146.) Plaintiff has an extensive work history, which includes working as an

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assistant manager/cook, an outsourcing clerk, a payroll clerk, and a purchasing and warehouse
manager. (R. 146.)
Plaintiff currently lives with her husband and has two adult children who no longer live at
home. (R. 32–33.) Plaintiff testified that she is unable to drive when taking her prescribed
medication due to drowsiness. (R. 34–35.) Plaintiff further testified that she has difficulty
performing personal hygiene, bathing, and dressing due to her numerous medical conditions. (R.
39–40.) Plaintiff also testified that she receives assistance from neighbors with shopping and
does not attend any social gatherings. (R. 42.)

(2) Medical Evidence
Plaintiff has a wide-ranging history of medical ailments that began before the alleged
disability onset date. First, during a bone density test in January 1997, Plaintiff was diagnosed
with osteopenia in her lumbar spine. (R. 196–197.) Then, in August 2009, Plaintiff underwent
another bone density scan that revealed severe osteoporosis in the AP L1–L4 region of her spine.
(R. 231.) Finally, in 2009, Plaintiff was treated for a lateral meniscus tear in her left knee, pain
and bulging in her lumbar spine that required epidural steroid injections, and a right shoulder
injury (R. 250, 310–312, 450–452.)
After the alleged disability onset date, Plaintiff was examined by a physician at the
request of the Indiana Disability Determination Service. (R. 339.) During this examination, Dr.
Shoucair made three significant findings regarding Plaintiff’s physical condition. First, Dr.
Shoucair noted that Ms. Williamson was able to “heel walk, toe walk, and ambulate without
difficulty.” (R. 341.) Next, Dr. Shoucair noted that Plaintiff had “[g]ood muscle strength . . . in
the bilateral upper and lower extremities . . . [g]ood full range of motion in the cervical and

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thoracic spine,” but did have a “[d]ecreased range of motion with forward flexion of the lumbar
spine.” (Id.) Finally, Dr. Shoucair concluded that “[d]espite impairments with respect to workrelated activities the claimant has the ability to sit, stand, handle objects, hear, see, and speak.”
(R. 342.)

(3) Plaintiff’s Testimony
At the hearing, Plaintiff testified that she suffered from numerous physical ailments that
affected her upper body, lower body, and daily activities. First, Plaintiff asserted that she had
significant right shoulder pain that inhibited her ability to lift and reach objects. (R. 31.) Plaintiff
also stated she has sharp pain that radiates from her neck down her back as a result of
“degenerative disc disease.” (Id.) As a result of this constant pain Plaintiff asserted that she could
only stand five to ten minutes at a time. (R. 33.) Finally, Plaintiff testified about the knee surgery
to repair her meniscus, osteoporosis, and osteopenia. (R. 31–32.) Plaintiff said that her knee
injury limited her to walking only between a hallway and a bathroom and that she was unable to
walk the equivalent of one city block. (R. 33–34.)
Plaintiff then testified about the impacts her impairments have on her daily activities.
Plaintiff testified that she only sleeps for about four hours a night due to knee and back pain. (R.
38.) Next, Plaintiff asserted that she is unable to shower without her husband who helps her wash
her hair and prevents her from falling. (R. 39.) Plaintiff also told the ALJ that she is unable to
dress herself, do simple household chores, or perform any yard work. (R. 40–41.)

(4) Vocational Expert’s Testimony
Vocational Expert (“VE”), Dr. James Lozer, testified at Plaintiff’s hearing before the
ALJ. (R. 46.) The ALJ described Plaintiff’s limitations as lifting ten pounds occasionally,
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standing or walking two hours of an eight hour work day, sitting for six hours of an eight hour
work day with breaks, never climbing ladders, ropes or scaffolds, and climbing ramps and stairs
occasionally. (R. 48.) The VE testified that Plaintiff could perform her past work as a collections
clerk despite her physical limitations. (R. 49.) The ALJ then asked whether there were any jobs
in the local or regional economy that Plaintiff could perform. (R. 49–50.) The VE responded that
someone with Plaintiff’s experience and residual functional capacity for work could serve as a
collections clerk, an assembler, or an office clerk. (Id.) In Plaintiff’s region there are
approximately 6,000 jobs that fall into the category of sedentary, unskilled work that Plaintiff’s
residual functional capacity would allow her to perform. (Id.)
Two more significant hypothetical questions were posed to the VE following the ALJ’s
initial round of questioning. First, the ALJ posed a hypothetical that assumed all of the same
conditions as above, but added the issue of persistent work absences. (R. 50.) The VE replied
that Plaintiff would not be able to sustain competitive employment if she missed more than 2.5
days of work a month. (Id.) Next, the VE testified that if Plaintiff could not complete the “lifting,
standing, walking, or sitting requirements of even sedentary work” for a normal work schedule
she could not sustain competitive employment. (R. 50.) The VE concluded his testimony by
affirming that the sedentary, unskilled jobs he listed require an individual to “understand,
remember and carry out simple instruction, make simple judgments . . . [and] interact
appropriately with supervisors and coworkers in routine work settings.” (R. 53.)

(5) ALJ’s Decision
The ALJ concluded that Plaintiff was not disabled under the Social Security Act. (R. 19.)
The ALJ classified Plaintiff’s post left knee surgery, osteoporosis, L5–S1 herniation without

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nerve root impingement, and bilateral radiculopathy as severe impairments. (R. 13.) However,
the ALJ found that Plaintiff’s impairments did not meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14.)
The ALJ found that Plaintiff possessed a residual functional capacity to perform
sedentary work as defined by 20 C.F.R. § 404.1567(b). (R. 17.) The ALJ assigned Plaintiff this
residual functional capacity even though State agency medical consultants opined that Plaintiff
could perform a limited range of light work, which is less restrictive than the ALJ’s finding. (R.
17.) The ALJ noted that Plaintiff was entitled to “the benefit of the doubt” and that the medical
evidence coupled with Plaintiff’s testimony supported “a more restrictive exertional level,” thus
a sedentary RFC finding (Id.)
The ALJ addressed all of Plaintiff’s self-confessed limitations and found her testimony to
be inconsistent with the objective medical evidence. (R. 14–17.) The ALJ observed Plaintiff’s
use of largely conservative treatment options, the lack of complaints regarding specific ailments
for long intervals, the lack of any treatment for significant periods of time, and the lack of any
opinion of disability from the Plaintiff’s treating physicians. (R. 15–17.) The ALJ then concluded
that the evidence on the record did not “support her allegations of symptoms, functional
limitations, and significantly reduced activities of daily living,” thus undermining her credibility.
(R. 17.)
Two weeks after the ALJ’s decision, Plaintiff obtained new medical treatment and
evidence which she presented to the Appeals Council. This medical evidence consisted of an
MRI of the lumbar spine and treatment records from a nurse practitioner. Plaintiff asserts that
this medical evidence is new, material, and that she has good cause for not presenting the

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evidence earlier. (DE 17, Pl.’s Br. at 19–20.) The Appeals Council reviewed this new evidence
and denied Plaintiff’s request for review. (R. 1–4.)

Plaintiff asserts two claims she believes necessitate remand or reversal. First, Plaintiff
maintains that the ALJ failed to properly develop the evidence and that his decision is not based
upon substantial evidence as required by 42 U.S.C. §405(g). (DE 17, Pl.’s Br. at 1.)
Next, Plaintiff requests remand on the basis of new medical evidence presented to the
Social Security Administration’s Appeals Council. She obtained this medical evidence two
weeks after the ALJ issued a decision. The evidence consisted of an MRI of the lumbar spine and
treatment records from a nurse practitioner. Plaintiff asserts that this medical evidence is new,
material, and that she had good cause for not presenting the evidence earlier, which allows this
Court to remand pursuant to 42 U.S.C. §405(g).2 (DE 17, Pl.’s Br. at 19–20.)

C. Disability Standard
To qualify for Disability Insurance Benefits or Supplemental Security Income claimants
must establish that they suffer from a disability. A disability is an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A.) The Social
Security Administration established a five-step inquiry to evaluate whether a claimant qualifies
for disability benefits. A successful claimant must show:

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“The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security shall, after
the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner’s
findings of fact or the Commissioner’s decision.” 42 U.S.C. §405(g) (2012).

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(1) he is not presently employed; (2) his impairment is severe; (3) his impairment is
listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is not
able to perform his past relevant work; and (5) he is unable to perform any other
work within the national and local economy.
Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004.)
An affirmative answer leads either to the next step or, on steps three and five, to a finding
that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001.) A negative
answer at any point other than step three stops the inquiry and leads to a finding that the claimant
is not disabled. (Id.) The burden of proof lies with the claimant at every step except the fifth,
where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000.)

D. Standard of Review for the ALJ’s Decision
This Court has the authority to review Social Security Act claim decisions under 42
U.S.C. § 405(g.) The Court will uphold an ALJ’s decision if it is reached under the correct legal
standard and supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345,
351 (7th Cir. 2005.) Substantial evidence consists of “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971.) This Court will not reconsider facts, re-weigh the evidence, resolve conflicts in the
evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005.) This Court will, however, ensure that the ALJ built
an “accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court,
we may assess the validity of the agency’s ultimate findings and afford a claimant meaningful
judicial review.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002.)

E. Standard of Review for New Evidence
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To necessitate remand, new medical evidence must be new, material, and there must be
good cause “for the failure to incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g) (2012). New evidence is material if it was “not in existence or available to
the claimant at the time of the administrative proceeding.” See Sample v. Shalala, 999 F.2d 1138,
1144 (7th Cir. 1993) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)).
In addition, there must be “a reasonable probability that the Commissioner would have
reached a different conclusion had the [new] evidence been considered.” Perkins v. Chater, 107
F.3d 1290, 1296 (7th Cir. 1997) (affirming the district court’s decision not to remand was proper
because claimant’s new evidence was an opinion based on facts already on the record). To
triumph on the good cause prong a Plaintiff must demonstrate that they could not have presented
the evidence earlier in the proceedings. See Campbell v. Shalala, 988 F.2d 741, 745 n.2 (7th Cir.
1993) (finding that Plaintiff failed to show good cause because they could have and should have
obtained evaluations while his case was still subject to administrative review).

F. Analysis
Plaintiff’s brief presents two separate reasons for this Court to reverse or remand the
ALJ’s decision. Both of Plaintiff’s arguments fail and will be evaluated in turn.

(1) Substantial evidence supports the ALJ’s credibility determination
An ALJ’s credibility finding is entitled to “considerable deference” and will only be
overturned if patently wrong. Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). “This
deferential standard acknowledges that the reviewing court does not have the opportunity to hear
and see witnesses, as the ALJ does.” Sims v. Barnhart, 442 F.3d 536, 537–38 (7th Cir. 2006).

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The ALJ must consider the claimant’s level of pain, medication, treatment, daily activities, and
limitations and must justify the credibility finding with specific reasons supported by the record.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); 20 C.F.R. § 404.1529(c) (2010); see also
SSR 96-7p, 1996 SSR LEXIS 4. An ALJ may find that an individual’s statements are “credible
to a certain degree.” SSR 96-7p, 1996 SSR LEXIS 4.
Here the ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms.” (R. 15.) However, the ALJ found that
the “claimants statements regarding the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with” Plaintiff’s assessed residual
functional capacity. (Id.) Plaintiff alleges the ALJ erred in his overall credibility finding by
assuming that Plaintiff should not have foregone treatment for eight months, which was
necessitated, at least in part, by her lack of health insurance. (DE 16, Pl.’s Br. at 22–23.)
The ALJ’s credibility determinations were not patently wrong. The ALJ explained the
credibility decision in a rational and logical manner and it was supported by substantial evidence
in the record. The ALJ’s findings took into account Plaintiff’s testimony and the medical
evidence regarding Plaintiff’s ability to perform a sedentary level of work. The ALJ’s statement
regarding gaps in treatment and conservative treatment was placed in the larger context of
overall credibility and was one of many examples where Plaintiff’s subjective complaints were
inconsistent with her pursued course of treatment. (R. 15–16.) For example, immediately after
the statement regarding Plaintiff’s credibility, the ALJ noted that, despite reports of disabling
knee pain, Plaintiff failed to seek additional treatment when her health insurance resumed. (R.
15.) This portion of the ALJ’s credibility analysis also corresponds to reports from Plaintiff’s
examining physicians that noted her “good tandem gait . . . [and her ability to] ambulate without

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difficulty.” (R. 17.) Accordingly, the ALJ’s opinion was properly developed and he relied upon
substantial evidence. Moreover, the ALJ considered relevant evidence and discounted overly
optimistic findings of State agency medical consultants when he reasonably concluded that
Plaintiff could perform sedentary work. Therefore, it was rational for the ALJ to find that
Plaintiff’s impairments were severe, but not to the extent that Plaintiff could not perform
sedentary work. Accordingly, the Court must affirm the ALJ’s decision regarding Plaintiff’s
ability to perform work at a sedentary level.

(2) Plaintiff’s new evidence would not change the ALJ’s decision
Plaintiff asserts that the Appeals Council erred in finding that her new evidence did not
require remand. (DE 16, Pl.’s Br. at 19–20.) Specifically, she argues that a new MRI and an
opinion from a one-time visit with a nurse practitioner support remand for further proceedings.
(Id. at 20–21.) Plaintiff’s argument fails for two reasons. First, Plaintiff’s argument that she had
good cause for not presenting this evidence earlier is unconvincing due to her treatment in the
year preceding the hearing with the ALJ and the medical evidence in the record. Second, it
would be unreasonable for this Court to find that this new evidence is material pursuant to 42
U.S.C. §405(g).
Plaintiff does not show good cause why this evidence was not obtained before the ALJ’s
hearing. In Plaintiff’s brief she explains the meaning of good cause, but does not assert how she
satisfies the requirement. Moreover, Plaintiff expressly articulates how the evidence is new and
material, but fails to advance any reason why she did not seek this treatment or opinion before
her hearing. This failure is particularly fatal because claimants have the burden of showing
“good cause.” Collins v. Astrue, 2010 U.S. Dist. LEXIS 111345, at *35 (N.D. Ind. Oct. 19,

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2010). Plaintiff received medical treatment through 2010 and 2011, but did not obtain this
evidence. Since Plaintiff has not shown any “impediment to obtaining the evidence,” good cause
has not been demonstrated. Anderson v. Bowen, 868 F.2d 921, 928 (7th Cir. 1989) (“Where, as
here, the reasons for pursuing additional evidence are apparent while the case is still subject to
administrative review, and there is no impediment to obtaining the evidence, no good cause has
been demonstrated for failing to bring the evidence to the Secretary’s attention.”). Accordingly,
Plaintiff has failed to satisfy the conditions required to remand this case.
Even if the Plaintiff could satisfy the good cause requirement, she fails to demonstrate
how this new evidence would lead to a different decision by the Commissioner of Social
Security or the ALJ. The evidence from the MRI is largely consistent with Plaintiff’s back
ailments that was already in the record. The ALJ repeatedly stated that Plaintiff received “the
benefit of the doubt,” even to the point that the ALJ downgraded the recommended RFC from
the State agency medical consultant. The ALJ’s analysis would not change on the basis of this
MRI, since the ALJ had already accounted for Plaintiff’s subjective assessment of pain. (R. 17.)
Similarly, the treatment notes from a nurse practitioner would not alter the ALJ’s assessment of
Plaintiff’s treating and examining physicians, which were consistent. Furthermore, an ALJ can
“assume that a claimant represented by counsel has presented her strongest case for benefits” at
the hearing. See Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). With this assumption in
mind, it is clear that a new MRI, obtained two weeks after the ALJ’s decision, and a nurse
practitioners one-time assessment would not materially impact the proceedings. Accordingly, the
Plaintiff has failed to satisfy the materiality prong.

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F. Conclusion
The ALJ decided Plaintiff’s claim using the correct legal standard and the decision was
supported by substantial evidence. Also, the Plaintiff did not provide new evidence that
necessitates remand under 42 U.S.C. §405(g). Therefore, the ALJ’s decision is affirmed.

SO ORDERED ON March 26, 2014.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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